Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34826/97

by Anders JOHANSSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 November 1996

by Anders JOHANSSON against Sweden and registered on 11 February 1997

under file No. 34826/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swedish citizen born in 1964, is residing in

Mariestad. He is currently serving a prison sentence in Hällby prison.

Before the Commission he is represented by Tomas Algons, a lawyer

practising in Skövde.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On the evening of 17 January 1996 K.J. (hereinafter called the

plaintiff) was beaten severely, abducted, tied and left in a desolate

place by two men. At first the plaintiff claimed that the perpetrators

were two unknown hitchhikers whom he had offered a ride in his car.

However, he later changed his statement and named and accused two

persons of the assault, i.e. the applicant and another person called

J.S. Subsequently, the applicant and J.S. were charged with, inter

alia, kidnapping and committed for trial.

The hearing of the District Court (tingsrätten) of Skövde,

scheduled for 21 March 1996, had to be postponed until 25 March as the

plaintiff failed to appear. On the latter date he was brought to the

hearing by the police.

On 9 April 1996 the District Court found the applicant and his

co-accused not guilty of the kidnapping and, thus, acquitted them in

that respect. In its judgment the court stated that, in view of all

circumstances of the case, including the denial of the accused and the

fact that the charges were supported solely by the plaintiff's

statement, it was not proven beyond reasonable doubt that the accused

had committed the alleged crime. The court's judgment was appealed

against by the Public Prosecutor.

Soon afterwards, on 2 May 1996, the applicant, J.S. and a third

person (M.P.) were charged with aggravated assault and battery of two

other persons. The co-accused M.P. was also charged with obstruction

of the course of justice (övergrepp i rättssak) as he, before the

kidnapping trial was held, had tried to persuade the plaintiff to

change his statement. Allegedly, he had threatened the plaintiff with

a knife and told him to make sure that the applicant and J.S. be

acquitted. With regard to the obstruction case, the court stated, inter

alia, that the plaintiff had made a credible impression and that the

court's assessment could be based on his statement. Thus, on

28 May 1996, the court found M.P. guilty as charged. Furthermore, the

court found the applicant and the two co-accused guilty of aggravated

assault and battery. All three appealed against the judgment.

The Court of Appeal decided to have joint proceedings in the

above cases. The court scheduled six days for the proceedings at which

the kidnapping case was to be examined first, i.e. on 18 July, 19 July

and in the morning of 22 July 1996. The obstruction case against M.P.

was scheduled to be examined in the afternoon of 22 July 1996 whereas

the assault and battery charges and some additional charges which were

brought against the accused were to be examined during the last three

days of the proceedings, i. e. on 24 - 26 July 1996. On 27 June 1996

the applicant was summoned to appear at the Court of Appeal's hearing

concerning the kidnapping case on 18 July 1996, on 19 July 1996 and on

22 July 1996. Moreover, on 28 June 1996 he was summoned to the court's

hearing on 24 - 26 July 1996 regarding, inter alia, the assault.

During the Court of Appeal's hearing in the kidnapping case the

applicant and his representative were present in person while the

plaintiff and other witnesses gave their statements before the court.

At the end of this part of the proceedings, the court informed the

parties that the proceedings were to be continued with, inter alia, the

obstruction charges against M.P. and that the applicant's presence was

not required until 24 July 1996. During the examination of the

obstruction charges against M.P., the plaintiff, the accused and one

witness were heard.

On 2 August 1996 the Court of Appeal sentenced the applicant to

a total of six years and nine months' imprisonment for, inter alia,

kidnapping and aggravated assault and battery. In its judgment the

Court of Appeal, inter alia, made the following assessment as to the

plaintiff's statement regarding the kidnapping case.

(Translation)

"Lacking witness observations or binding technical

evidence, the charges are based, as the District Court has

found, solely on the [plaintiff's] statements. However,

this does not mean that the submitted evidence cannot be

sufficient for a conviction. It is therefore of significant

importance to assess the credibility of [the plaintiff's]

statements in the light of the other circumstances of the

case.

[The plaintiff] has given a long story which is coherent in

details. It has been given in a credible manner. It is in

all relevant parts in accordance with his earlier

statements to the police and before the District Court.

Like the District Court, the Court of Appeal has the

impression that [the plaintiff] has been afraid to talk

about the events and that he has given his statement in

agony without exaggerations.

...

When [the plaintiff] was found and questioned he first

claimed that he had been assaulted by two unknown

hitchhikers. The Court of Appeal finds his explanation why

he did not want to name the perpetrators as highly

credible. During the questioning of the accused and others

it has emerged that it was an unwritten rule not to "grass"

on the people with whom he was associating. Therefore, [the

plaintiff's] statement that, at first, he did not want or

dare to tell who the perpetrators were appears to be a

natural reaction. ... Thus, the Court of Appeal concurs in

the District Court's opinion that [the plaintiff's] changed

statement concerning the perpetrators does not give reason

to doubt the credibility of his statement. As it turned

out, his fears were confirmed as he was exposed to threats

before the District Court's hearing. As the Court of Appeal

will show in the following, it has been proven that [M.P.]

threatened him with a knife so that he would "get out" [the

applicant] and [J.S.]. Having regard to what has emerged

about the threat which [M.P.] exposed [the plaintiff] to

before the hearing in the District Court, the fact that he

did not voluntarily appear at that hearing does not give

reason to doubt his statements. The fact that [the

plaintiff] has moved to another place also indicates that

he found the threats to be serious.

...

With regard to the question whether the applicant and

[J.S.] are the perpetrators, ... [the plaintiff] has given

an acceptable and reasonable explanation why he first

stated that he was assaulted by unknown hitchhikers but

later ... changed his mind and named the perpetrators of

the crime. ...

It has also emerged that the accused do not hesitate to

commit serious and violent crimes together. Furthermore, in

the Court of Appeal, a reasonable motive has been

presented. Accordingly, and in view of all other

circumstances in the case, the Court of Appeal finds that

the assessment of the charges shall be based on the

statements made by [the plaintiff]."

With regard to the charges concerning obstruction of the course

of justice, the appellate court concurred in the District Court's

judgment.

The applicant appealed against the judgment but, on

6 September 1996, the Supreme Court refused leave to appeal.

COMPLAINTS

The applicant complains that he was denied a fair hearing in the

Court of Appeal. He claims that he was unable to defend himself

properly as he was not allowed to be present during a part of the

proceedings in which the plaintiff gave evidence. Therefore, he was

deprived of the possibility to cast doubt on the witness's credibility.

He maintains that this affected the judgment against him. The applicant

invokes Article 6 of the Convention.

THE LAW

The applicant alleges that the proceedings in the Court of Appeal

were unfair as he was not allowed to be present at the entire hearing.

He invokes Article 6 (Art. 6) of the Convention, which, in relevant

parts, reads as follows:

"1. In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by [a]

tribunal...

...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him."

The applicant submits that, with regard to the kidnapping case,

the plaintiff's statement constituted the only incriminating evidence

in the proceedings against him as there were no binding technical

evidence or witness observations. Therefore, the appellate court must

have based its judgment solely on the plaintiff's credibility at the

hearing. However, the court's impression of his credibility has not

only been appreciated during the court's examination in the kidnapping

case, but also when the plaintiff gave his statement in the obstruction

case against M.P., a part of the hearing at which the applicant was not

present and, thus, unable to cast doubt on the plaintiff's credibility

by questioning him.

The Commission recalls that the guarantees in paragraph 3 (d) of

Article 6 (Art. 6) are specific aspects of the right to a fair hearing

set forth in paragraph 1 of that Article (cf. Eur. Court HR, Asch v.

Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 25).

Furthermore, the taking of evidence is primarily governed by the rules

of domestic law and it is in principle for the national courts to

assess the evidence before them. Accordingly, the Commission's task in

the present case is to ascertain whether the proceedings, considered

as a whole, including the way in which evidence was taken, were fair.

This requires, in principle, that all the evidence be produced in the

presence of the accused at a public hearing with a view to adversarial

argument.

The Commission notes that the Court of Appeal decided to have

joint proceedings in two different cases. Thus, the court's hearing

concerned several different crimes allegedly committed by different

persons. In so far as relevant, the proceedings involved the

examination of not only a kidnapping charge brought against the

applicant, but also a charge against another person, M.P., for

obstruction of the course of justice. However, the victim was the same

person in both matters.

It is not disputed that the applicant was present in person while

the court examined the kidnapping charge brought against him and that

the plaintiff's statement was given in his presence with a view to

adversarial argument. It is true that the applicant was not present

when the plaintiff gave his statement in the obstruction case. However,

no criminal charges were brought against the applicant in this matter

and, as it appears, he was in no way responsible for the threats

against the plaintiff. Moreover, when examining the kidnapping charge,

the Court of Appeal took into account the plaintiff's statements with

regard to the obstruction matter only in so far as it found that his

credibility was not lessened by the fact that he had failed to appear

at the District Court's hearing as originally scheduled. The statements

which were given in relation to the kidnapping case and which formed

the basis of the applicant's conviction, were all given in the

applicant's and his representative's presence. Thus, they had ample

opportunity to cast doubt on the plaintiff's statements.

In these circumstances, the Commission considers that the facts

submitted do not disclose any appearance of a violation of the

applicant's right to examine witnesses under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention or his general right to a fair hearing

under para. 1 of the same Article.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 paragraph 2 (Art. 27-2) of the Convention.

For this reason the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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JOHANSSON v. SWEDEN

JOHANSSON v. SWEDEN

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